EXHIBIT 99.3
- --------------------------------------------------------------------------------
POOLING AND SERVICING AGREEMENT
BETWEEN
CAPITAL AUTO RECEIVABLES, INC.
AND
GENERAL MOTORS ACCEPTANCE CORPORATION
DATED AS OF JANUARY 24, 2002
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
SECTION 1.01 Definitions. 1
SECTION 1.02 Owner of a Receivable...........................................2
ARTICLE II PURCHASE AND SALE OF RECEIVABLES....................................2
SECTION 2.01 Purchase and Sale of Receivables................................2
SECTION 2.02 Receivables Purchase Price......................................3
SECTION 2.03 The Closing.....................................................3
SECTION 2.04 Custody of Receivable Files.....................................3
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES........................3
SECTION 3.01 Duties of the Servicer..........................................3
SECTION 3.02 Collection of Receivable Payments...............................4
SECTION 3.03 Rebates on Full Prepayments on Scheduled Interest Receivables...5
SECTION 3.04 Realization Upon Liquidating Receivables........................5
SECTION 3.05 Maintenance of Insurance Policies...............................5
SECTION 3.06 Maintenance of Security Interests in Vehicles...................5
SECTION 3.07 Covenants, Representations and Warranties of the Servicer.......6
SECTION 3.08 Purchase of Receivables Upon Breach of Covenant.................7
SECTION 3.09 Total Servicing Fee; Payment of Certain Expenses by Servicer....7
SECTION 3.10 Servicer's Accounting...........................................8
SECTION 3.11 Application of Collections......................................8
ARTICLE IV REPRESENTATIONS AND WARRANTIES......................................9
SECTION 4.01 Representations and Warranties as to the Receivables............9
SECTION 4.02 Additional Representations and Warranties of GMAC..............11
SECTION 4.03 Representations and Warranties of CARI.........................13
ARTICLE V ADDITIONAL AGREEMENTS...............................................13
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements.......13
SECTION 5.02 Protection of Title............................................13
SECTION 5.03 Other Liens or Interests.......................................14
SECTION 5.04 Repurchase Events..............................................14
SECTION 5.05 Indemnification................................................15
SECTION 5.06 Further Assignments............................................15
SECTION 5.07 Pre-Closing Collections........................................15
ARTICLE VI CONDITIONS.........................................................15
SECTION 6.01 Conditions to Obligation of CARI...............................15
SECTION 6.02 Conditions To Obligation of GMAC...............................16
ARTICLE VII MISCELLANEOUS PROVISIONS..........................................16
SECTION 7.01 Amendment......................................................16
SECTION 7.02 Survival.......................................................16
SECTION 7.03 Notices........................................................16
i
<page>
SECTION 7.04 GOVERNING LAW..................................................17
SECTION 7.05 Waivers........................................................17
SECTION 7.06 Costs and Expenses.............................................17
SECTION 7.07 Confidential Information.......................................17
SECTION 7.08 Headings.......................................................17
SECTION 7.09 Counterparts...................................................17
SECTION 7.10 No Petition Covenant...........................................17
SECTION 7.11 Limitations on Rights of Others................................17
EXHIBIT A Form of Assignment
APPENDIX A Definitions, Rules of Construction and Notices
APPENDIX B Additional Representations and Warranties
ii
POOLING AND SERVICING AGREEMENT, dated as of January 24, 2002, between
CAPITAL AUTO RECEIVABLES, INC., a Delaware corporation ("CARI"), and GENERAL
MOTORS ACCEPTANCE CORPORATION, a Delaware corporation (herein referred to as
"GMAC" in its capacity as seller of the Receivables and as the "Servicer" in its
capacity as servicer of the Receivables).
WHEREAS, CARI desires to purchase a portfolio of automobile and light truck
retail instalment sale contracts and related rights owned by GMAC;
WHEREAS, GMAC is willing to sell such contracts and related rights to CARI;
WHEREAS, CARI may wish to sell or otherwise transfer such contracts and
related rights, or interests therein, to a trust, corporation, partnership or
other entity (any such entity being the "Issuer");
WHEREAS, the Issuer may issue debentures, notes, participations,
certificates of beneficial interest, partnership interests or other interests or
securities (collectively, any such issued interests or securities being
"Securities") to fund its acquisition of such contracts and related rights;
WHEREAS, the Issuer may wish to provide in the agreements pursuant to which
it acquires its interest in such contracts and related rights and issues the
Securities (all such agreements being collectively the "Further Transfer and
Servicing Agreements") that GMAC shall service such contracts;
WHEREAS, the Servicer is willing to service such contracts in accordance
with the terms hereof for the benefit of CARI and, by its execution of the
Further Transfer and Servicing Agreements, will be willing to service such
contracts in accordance with the terms of such Further Transfer and Servicing
Agreements for the benefit of the Issuer and each other party identified or
described herein or in the Further Transfer and Servicing Agreements as having
an interest as owner, trustee, secured party, or holder of Securities (the
Issuer and all such parties under the Further Transfer and Servicing Agreements
being "Interested Parties") with respect to such contracts, and the proceeds
thereof, as the interests of such parties may appear from time to time.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Certain capitalized terms used in this Agreement
are defined in and shall have the respective meanings assigned them in Part I of
Appendix A to this Agreement. All references herein to "the Agreement" or "this
Agreement" are to this Pooling and Servicing Agreement as it may be amended,
supplemented or modified from time to time, and all references herein to
Articles and Sections are to Articles or Sections of this Agreement unless
otherwise specified. The rules of construction set forth in Part II of such
Appendix A shall be applicable to this Agreement.
1
<page>
SECTION 1.02 Owner of a Receivable. For purposes of this Agreement, the
"Owner" of a Receivable shall mean CARI until the execution and delivery of the
Further Transfer and Servicing Agreements and thereafter shall mean the Issuer;
provided, that GMAC or CARI, as applicable, shall be the "Owner" of any
Receivable from and after the time that such Person shall acquire such
Receivable, whether pursuant to Section 3.08 or 5.04 of this Agreement, any
provision of the Further Transfer and Servicing Agreements or otherwise.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.01 Purchase and Sale of Receivables. On such date as is
acceptable to CARI and GMAC by which the conditions specified in Article VI have
been satisfied (and in any event immediately prior to consummation of the
transactions contemplated by the Further Transfer and Servicing Agreements, if
any), GMAC shall sell, transfer, assign and otherwise convey to CARI, without
recourse:
(a) all right, title and interest of GMAC in, to and under the Receivables
listed on the Schedule of Receivables and (i) in the case of Scheduled Interest
Receivables, all monies due thereunder on and after the Cutoff Date and (ii) in
the case of Simple Interest Receivables, all monies received thereon on and
after the Cutoff Date, in each case exclusive of any amounts allocable to the
premium for physical damage insurance force-placed by GMAC covering any related
Financed Vehicle;
(b) the interest of GMAC in the security interests in the Financed Vehicles
granted by Obligors pursuant to the Receivables and, to the extent permitted by
law, any accessions thereto;
(c) except for those Receivables originated in Wisconsin, the interest of
GMAC in any proceeds from claims on any physical damage, credit life, credit
disability or other insurance policies covering Financed Vehicles or Obligors;
(d) the interest of GMAC in any proceeds from recourse against Dealers on
Receivables; and
(e) the interest of GMAC in any proceeds of the property described in
clauses (a) and (b) above.
The property described in clauses (a) through (e) above is referred to
herein collectively as the "Purchased Property."
It is the intention of GMAC and CARI that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables from
GMAC to CARI and the beneficial interest in and title to the Receivables shall
not be part of GMAC's estate in the event of the filing of a bankruptcy petition
by or against GMAC under any bankruptcy law.
The foregoing sale does not constitute and is not intended to
result in any assumption by CARI of any obligation of GMAC to the Obligors,
2
Dealers, insurers or any other Person in connection with the Receivables, any
Dealer Agreements, any insurance policies or any agreement or instrument
relating to any of them.
SECTION 2.02 Receivables Purchase Price. In consideration for the Purchased
Property, CARI shall, at the closing hereunder, pay to GMAC an amount equal to
the Initial Aggregate Discounted Principal Balance in respect of the Receivables
(the "Receivables Purchase Price") and GMAC shall execute and deliver to CARI an
assignment in the form attached hereto as Exhibit A. A portion of the
Receivables Purchase Price equal to $2,158,289,912.46 shall be paid to GMAC in
immediately available funds, and the balance of the Receivables Purchase Price
shall be recorded as an advance from GMAC to CARI pursuant to the Intercompany
Advance Agreement.
SECTION 2.03 The Closing. The sale and purchase of the Receivables shall
take place at the offices of Kirkland & Ellis, 200 East Randolph Drive, Chicago,
Illinois 60601, at a date and time mutually agreeable to GMAC and CARI, and may
occur simultaneously with the closing of transactions contemplated by the
Further Transfer and Servicing Agreements.
SECTION 2.04 Custody of Receivable Files. In connection with the sale,
transfer and assignment of the Receivables to CARI pursuant to this Agreement,
CARI, simultaneously with the execution and delivery of this Agreement, shall
enter into the Custodian Agreement with the Custodian, pursuant to which CARI
shall revocably appoint the Custodian, and the Custodian shall accept such
appointment, to act as the agent of CARI as Custodian of the following documents
or instruments which shall be constructively delivered to CARI with respect to
each Receivable:
(a) the fully executed original of the instalment sale contract for
such Receivable;
(b) documents evidencing or related to any Insurance Policy;
(c) the original credit application of each Obligor, fully executed by
each such Obligor on GMAC's customary form, or on a form approved by GMAC,
for such application;
(d) where permitted by law, the original certificate of title (when
received) and otherwise such documents, if any, that GMAC keeps on file in
accordance with its customary procedures indicating that the Financed
Vehicle is owned by the Obligor and subject to the interest of GMAC as
first lienholder or secured party; and
(e) any and all other documents that GMAC keeps on file in accordance
with its customary procedures relating to the individual Receivable,
Obligor or Financed Vehicle.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01 Duties of the Servicer. The Servicer is hereby appointed and
authorized to act as agent for the Owner of the Receivables and in such capacity
shall manage, service, administer and make collections on the Receivables with
reasonable care, using that degree of skill and attention that the Servicer
3
exercises with respect to comparable automotive receivables that it services for
itself or others. The Servicer hereby accepts such appointment and authorization
and agrees to perform the duties of Servicer with respect to the Receivables set
forth herein and in the Further Transfer and Servicing Agreements. The
Servicer's duties shall include collection and posting of all payments,
responding to inquiries of Obligors, investigating delinquencies, sending
payment coupons to Obligors, reporting tax information to Obligors, policing the
collateral, accounting for collections and furnishing monthly and annual
statements to the Owner of any Receivables with respect to distributions,
generating federal income tax information and performing the other duties
specified herein. Subject to the provisions of Section 3.02, the Servicer shall
follow its customary standards, policies and procedures and shall have full
power and authority, acting alone, to do any and all things in connection with
such managing, servicing, administration and collection that it may deem
necessary or desirable. Without limiting the generality of the foregoing, the
Servicer is hereby authorized and empowered by the Owner of the Receivables,
pursuant to this Section 3.01, to execute and deliver, on behalf of all
Interested Parties, or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables and the Financed
Vehicles. The Servicer is hereby authorized to commence, in its own name or in
the name of the Owner of such Receivable a legal proceeding to enforce a
Liquidating Receivable as contemplated by Section 3.04, to enforce all
obligations of GMAC and CARI under this Agreement and under the Further Transfer
and Servicing Agreements or to commence or participate in a legal proceeding
(including without limitation a bankruptcy proceeding) relating to or involving
a Receivable or a Liquidating Receivable. If the Servicer commences or
participates in such a legal proceeding in its own name, the Servicer is hereby
authorized and empowered by the Owner of the Receivables pursuant to this
Section 3.01, to obtain possession of the related Financed Vehicle and
immediately and without further action on the part of the Owner or the Servicer,
the Owner of such Receivable shall thereupon automatically assign in trust such
Receivable and the security interest in the related Financed Vehicle to the
Servicer for the benefit of the Interested Parties for purposes of commencing or
participating in any such proceeding as a party or claimant. Upon such automatic
assignment, the Servicer will be, and will have all the rights and duties of, a
secured party under the UCC and other applicable law with respect to such
Receivable and the related Financed Vehicle. At the Servicer's request from time
to time, the Owner of a Receivable assigned under this Section 3.01 shall
provide the Servicer with evidence of the assignment in trust for the benefit of
the Interested Parties as may be reasonably necessary for the Servicer to take
any of the actions set forth in the following sentence. The Servicer is hereby
authorized and empowered by the Owner of a Receivable to execute and deliver in
the Servicer's name any notices, demands, claims, complaints, responses,
affidavits or other documents or instruments in connection with any such
proceeding. Any Owner of Receivables shall furnish the Servicer with any powers
of attorney and other documents and take any other steps which the Servicer may
deem necessary or appropriate to enable the Servicer to carry out its servicing
and administrative duties under this Agreement and the Further Transfer and
Servicing Agreements. Except to the extent required by the preceding two
sentences, the authority and rights granted to the Servicer in this Section 3.01
shall be nonexclusive and shall not be construed to be in derogation of the
retention by the Owner of a Receivable of equivalent authority and rights.
SECTION 3.02 Collection of Receivable Payments. The Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due, and shall
4
follow such collection practices, policies and procedures as it follows with
respect to comparable automotive receivables that it services for itself or
others. Except as provided in Section 3.07(a)(iii), the Servicer is hereby
authorized to grant extensions, rebates or adjustments on a Receivable without
the prior consent of the Owner of such Receivable. The Servicer is authorized in
its discretion to waive any prepayment charge, late payment charge or any other
fees that may be collected in the ordinary course of servicing such Receivable.
SECTION 3.03 Rebates on Full Prepayments on Scheduled Interest Receivables.
If the amount of a full Prepayment by an Obligor under a Scheduled Interest
Receivable, after adjustment for the Rebate, is less than the amount that would
be payable under the actuarial method if a full Prepayment were made at the end
of the billing month under such Scheduled Interest Receivable, either because
the Rebate calculated under the terms of such Receivable is greater than the
amount calculable under the actuarial method or because the Servicer's customary
servicing procedure is to credit a greater Rebate, the Servicer, as part of its
servicing duties, shall remit such difference to the Owner of such Receivable.
SECTION 3.04 Realization Upon Liquidating Receivables. The Servicer shall
use reasonable efforts, consistent with its customary servicing procedures, to
repossess or otherwise comparably convert the ownership of any Financed Vehicle
that it has reasonably determined should be repossessed or otherwise converted
following a default under the Receivable secured by the Financed Vehicle. The
Servicer is authorized to follow such practices, policies and procedures as it
follows with respect to comparable automotive receivables that it services for
itself or others, which practices, policies and procedures may include
reasonable efforts to realize upon any recourse to Dealers, selling the related
Financed Vehicle at public or private sale and other actions by the Servicer in
order to realize upon such a Receivable. The foregoing is subject to the
provision that, in any case in which the Financed Vehicle shall have suffered
damage, the Servicer shall not expend funds in connection with any repair or
towards the repossession of such Financed Vehicle unless it shall determine in
its discretion that such repair and/or repossession shall increase the proceeds
of liquidation of the related Receivable by an amount greater than the amount of
such expenses. The Servicer shall be entitled to receive Liquidation Expenses
with respect to each Liquidating Receivable at such time as the Receivable
becomes a Liquidating Receivable (or as may otherwise be provided in the Further
Transfer and Servicing Agreements).
SECTION 3.05 Maintenance of Insurance Policies. The Servicer shall, in
accordance with its customary servicing procedures, require that each Obligor
shall have obtained physical damage insurance covering the Financed Vehicle as
of the execution of the related Receivable. The Servicer shall, in accordance
with its customary servicing procedures, monitor such physical damage insurance
with respect to each Receivable.
SECTION 3.06 Maintenance of Security Interests in Vehicles. The Servicer
shall, in accordance with its customary servicing procedures and at its own
expense, take such steps as are necessary to maintain perfection of the security
interest created by each Receivable in the related Financed Vehicle. The Owner
of each Receivable hereby authorizes the Servicer to re-perfect such security
interest on behalf of such Owner, as necessary because of the relocation of a
Financed Vehicle, or for any other reason.
5
<page>
SECTION 3.07 Covenants, Representations and Warranties of the Servicer. As
of the closing hereunder, the Servicer hereby makes the following
representations, warranties and covenants on which CARI relies in accepting the
Receivables hereunder and on which the Issuer shall rely in accepting the
Receivables and executing and delivering the Securities under the Further
Transfer and Servicing Agreements.
(a) The Servicer covenants that from and after the closing hereunder:
(i) Liens in Force. Except as contemplated in this Agreement or the
Further Transfer and Servicing Agreements, the Servicer shall not release
in whole or in part any Financed Vehicle from the security interest
securing the related Receivable;
(ii) No Impairment. The Servicer shall do nothing to impair the rights
of CARI or any Interested Party in and to the Receivables; and
(iii) No Modifications. The Servicer shall not amend or otherwise
modify any Receivable such that the Amount Financed, the Annual Percentage
Rate, the total number of Scheduled Payments (in the case of a Scheduled
Interest Receivable) or the number of originally scheduled due dates (in
the case of a Simple Interest Receivable), is altered or such that the last
Scheduled Payment (in the case of a Scheduled Interest Receivable) or the
last scheduled due date (in the case of a Simple Interest Receivable)
occurs after the final scheduled payment date that is specified in Section
4.01(r).
(b) Upon the execution of the Further Transfer and Servicing Agreements,
the Servicer represents and warrants to the Issuer and CARI that in addition to
the representations and warranties in Sections 4.01 and 4.02 being true as of
the date of the closing thereunder that as of such closing:
(i) Organization and Good Standing. The Servicer had at all relevant
times, and now has, power, authority and legal right to service the
Receivables as provided herein and in the Further Transfer and Servicing
Agreements;
(ii) Power and Authority. The Servicer has the power and authority to
execute and deliver the Further Transfer and Servicing Agreements and to
carry out the terms of such agreements; and the Servicer's execution,
delivery and performance of the Further Transfer and Servicing Agreements
have been duly authorized by the Servicer by all necessary corporate
action;
(iii) Binding Obligation. The Further Transfer and Servicing
Agreements, when duly executed and delivered, shall constitute the legal,
valid and binding obligations of the Servicer enforceable in accordance
with their respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(iv) No Violation. The consummation by the Servicer of the
transactions contemplated by the Further Transfer and Servicing Agreements,
6
<page>
and the fulfillment by the Servicer of the terms of the Further Transfer
and Servicing Agreements, shall not conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or without notice
or lapse of time) a default under, the articles of incorporation or by-laws
of the Servicer, or any indenture, agreement, mortgage, deed of trust or
other instrument to which the Servicer is a party or by which it is bound,
or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement,
mortgage, deed of trust or other instrument, other than the Further
Transfer and Servicing Agreements, or violate any law or, to the best of
the Servicer's knowledge, any order, rule or regulation applicable to the
Servicer of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Servicer or any of its properties;
(v) No Proceedings. To the Servicer's knowledge, there are no
proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over the Servicer or its properties (A)
asserting the invalidity of the Further Transfer and Servicing Agreements
or any Securities issued thereunder, (B) seeking to prevent the issuance of
such Securities or the consummation of any of the transactions contemplated
by the Further Transfer and Servicing Agreements, or (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Servicer of its obligations under, or the validity or
enforceability of, the Further Transfer and Servicing Agreements; and
(vi) Reasonable Liquidation Expenses. The amounts defined as
"Liquidation Expenses" are a reasonable estimate of such expenses,
reasonably related to the Servicer's experience for such expenses in
servicing comparable automotive receivables.
SECTION 3.08 Purchase of Receivables Upon Breach of Covenant. Upon
discovery by any of the Servicer, CARI or any party under the Further Transfer
and Servicing Agreements of a breach of any of the covenants set forth in
Sections 3.06 and 3.07(a), the party discovering such breach shall give prompt
written notice thereof to the others. As of the last day of the second Monthly
Period following its discovering or receiving notice of such breach (or, at the
Servicer's election, the last day of the first Monthly Period so following), the
Servicer shall, unless it shall have cured such breach in all material respects,
purchase from the Owner thereof any Receivable materially and adversely affected
by such breach as determined by such Owner and, on the related Distribution
Date, the Servicer shall pay the Administrative Purchase Payment, and shall be
entitled to receive the Released Administrative Amount, if any. It is understood
and agreed that the obligation of the Servicer to purchase any Receivable with
respect to which such a breach has occurred and is continuing shall, if such
obligation is fulfilled, constitute the sole remedy against the Servicer for
such breach available to CARI or any Interested Party.
SECTION 3.09 Total Servicing Fee; Payment of Certain Expenses by Servicer. The
Servicer is entitled to receive the Total Servicing Fee and Supplemental
Servicing Fees out of collections in respect of the Receivables. The Servicer
shall also be entitled to Investment Earnings as set forth in the Further
Transfer and Servicing Agreements. Subject to any limitations on the Servicer's
liability under the Further Transfer and Servicing Agreements, the Servicer
shall be required to pay all expenses incurred by it in connection with its
activities under this Agreement and under the Further Transfer and Servicing
Agreements (including fees and disbursements of the Issuer, any trustees and
independent accountants, taxes imposed on the Servicer, expenses incurred in
7
<page>
connection with distributions and reports to holders of Securities and all other
fees and expenses not expressly stated under this Agreement or the Further
Transfer and Servicing Agreements to be for the account of the holders of
Securities).
SECTION 3.10 Servicer's Accounting. On each Determination Date under a
Further Transfer and Servicing Agreement, the Servicer shall deliver to each of
the trustees and other applicable parties under the Further Transfer and
Servicing Agreements and to CARI and the Rating Agencies a Servicer's Accounting
with respect to the immediately preceding Monthly Period executed by the
President or any Vice President of the Servicer containing all information
necessary to each such party for making any distributions required by the
Further Transfer and Servicing Agreements, and all information necessary to each
such party for sending any statements required under the Further Transfer and
Servicing Agreements. Receivables to be purchased by the Servicer under Sections
3.08 or 5.04 or to be repurchased by CARI or GMAC under the Further Transfer and
Servicing Agreements as of the last day of any Monthly Period shall be
identified by Receivable number (as set forth in the Schedule of Receivables).
With respect to any Receivables for which CARI is the Owner, the Servicer shall
deliver to CARI such accountings relating to such Receivables and the actions of
the Servicer with respect thereto as CARI may reasonably request.
SECTION 3.11 Application of Collections. For the purposes of this Agreement
and the Further Transfer and Servicing Agreements, no later than each
Distribution Date all collections for the related Monthly Period shall be
applied by the Servicer as follows:
(a) With respect to each Scheduled Interest Receivable (other than an
Administrative Receivable or a Warranty Receivable), payments by or on behalf of
the Obligor which are not Supplemental Servicing Fees shall be applied first to
reduce outstanding advances of shortfalls in collections, if any, made pursuant
to the Further Transfer and Servicing Agreements with respect to such
Receivable. Next, the amount of any such payments in excess of Supplemental
Servicing Fees and any such advances with respect to such Receivable shall be
applied to the Scheduled Payment with respect to such Receivable. Any amount of
such payments remaining after the applications described in the preceding two
sentences constitutes an Excess Payment with respect to such Receivable, and
such Excess Payment (to the extent it does not constitute a Payment Ahead) shall
be applied to prepay such Receivable. If the amounts applied under the first two
sentences of this Section 3.11(a) shall be less than the Scheduled Payment,
whether as a result of any extension granted to the Obligor or otherwise, then
the Deferred Prepayment, if any, with respect to such Receivable shall be
applied by the Servicer to the extent of the shortfall, and such Deferred
Prepayment shall be reduced accordingly.
(b) With respect to all Simple Interest Receivables (other than
Administrative Receivables and Warranty Receivables), payments by or on behalf
of the Obligors which are not Supplemental Servicing Fees shall be applied first
to the payment to the Servicer of Excess Simple Interest Collections, if any,
and next to principal and interest on all such Simple Interest Receivables.
(c) With respect to each Administrative Receivable and Warranty Receivable,
payments by or on behalf of the Obligor shall be applied in the same manner,
except that any Released Administrative Amount or Released Warranty Amount shall
8
<page>
be remitted to the Servicer or CARI, as applicable. In the case of a Scheduled
Interest Receivable, a Warranty Payment shall be applied to reduce any advances
described in Section 3.11(a) and such Warranty Payment or an Administrative
Purchase Payment, as applicable, shall be applied to the Scheduled Payment, in
each case to the extent that the payments by or on behalf of the Obligor shall
be insufficient, and then to prepay such Receivable in full. In the case of a
Simple Interest Receivable, a Warranty Payment or an Administrative Payment, as
applicable, shall be applied to principal and interest on such Receivable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties as to the Receivables. GMAC
makes the following representations and warranties as to the Receivables on
which CARI relies in accepting the Receivables. Such representations and
warranties speak as of the date hereof, as of the closing hereunder and as of
the closing under the Further Transfer and Servicing Agreements, and shall
survive the sale, transfer and assignment of the Receivables to CARI and the
subsequent assignment and transfer pursuant to the Further Transfer and
Servicing Agreements:
(a) Characteristics of Receivables. Each Receivable (i) was originated
by a Dealer for the retail sale of a Financed Vehicle in the ordinary
course of such Dealer's business, was fully and properly executed by the
parties thereto, was purchased by GMAC from such Dealer under an existing
Dealer Agreement, and was validly assigned by such Dealer to GMAC in
accordance with its terms, (ii) has created or shall create a valid,
binding and enforceable first priority security interest in favor of GMAC
in the Financed Vehicle, which security interest is assignable by GMAC to
CARI, (iii) contains customary and enforceable provisions such as to render
the rights and remedies of the holder thereof adequate for realization
against the collateral of the benefits of the security, and (iv) provides
for level monthly payments (provided that the payment in the first month
and the final month of the life of the Receivable may be different from the
level payment) which shall not vary from one another by more than $5, shall
amortize the Amount Financed by maturity and shall yield interest at the
Annual Percentage Rate. Scheduled Interest Receivables represent (based on
Principal Balances) 30% of the Initial Aggregate Principal Balance, with
the balance of the Receivables being Simple Interest Receivables;
(b) Creation, Perfection and Priority of Security Interests. The
representations and warranties regarding creation, perfection and priority
of security interests in the Purchased Property, which are attached to this
Agreement as Appendix B, are true and correct to the extent that they are
applicable.
(c) Schedule of Receivables. The information set forth in the Schedule
of Receivables is true and correct in all material respects, and no
selection procedures believed to be adverse to CARI or to holders of the
Securities issued under the Further Transfer and Servicing Agreements were
utilized in selecting the Receivables from those receivables of GMAC which
meet the selection criteria under this Agreement;
9
<page>
(d) Compliance With Law. All requirements of applicable federal, state
and local laws, and regulations thereunder, including, without limitation,
usury laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity
Act, the Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair
Debt Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, the Federal Reserve Board's Regulations "B" and
"Z", the Soldiers' and Sailors' Civil Relief Act of 1940, the Texas
Consumer Credit Code, and state adaptations of the National Consumer Act
and of the Uniform Consumer Credit Code and other consumer credit laws and
equal credit opportunity and disclosure laws, in respect of any of the
Receivables, have been complied with in all material respects, and each
Receivable and the sale of the Financed Vehicle evidenced thereby complied
at the time it was originated or made and now complies in all material
respects with all legal requirements of the jurisdiction in which it was
originated or made;
(e) Binding Obligation. Each Receivable represents the genuine, legal,
valid and binding payment obligation in writing of the Obligor thereon,
enforceable by the holder thereof in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights in general and
by equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(f) Security Interest in Financed Vehicle. Immediately prior to the
sale, transfer and assignment thereof pursuant hereto, each Receivable was
secured by a validly perfected first priority security interest in the
Financed Vehicle in favor of GMAC as secured party or all necessary and
appropriate action had been commenced that would result in the valid
perfection of a first priority security interest in the Financed Vehicle in
favor of GMAC as secured party;
(g) Receivables In Force. No Receivable has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Receivable has not been released from the lien of the related Receivable in
whole or in part;
(h) No Waiver. Since the Cutoff Date, no provision of a Receivable has
been waived, altered or modified in any respect;
(i) No Defenses. No right of rescission, setoff, counterclaim or
defense has been asserted or threatened with respect to any Receivable;
(j) No Liens. There are, to the best of GMAC's knowledge, no liens or
claims that have been filed for work, labor or materials affecting any
Financed Vehicle securing any Receivable that are or may be liens prior to,
or equal or coordinate with, the security interest in the Financed Vehicle
granted by the Receivable;
(k) Insurance. Each Obligor is required to maintain a physical damage
insurance policy of the type that GMAC requires in accordance with its
customary underwriting standards for the purchase of automotive
receivables;
(l) Good Title. No Receivable has been sold, transferred, assigned or
pledged by GMAC to any Person other than CARI; immediately prior to the
10
<page>
conveyance of the Receivables pursuant to this Agreement GMAC had good and
marketable title thereto, free of any Lien; and, upon execution and
delivery of this Agreement by GMAC, CARI shall have all of the right, title
and interest of GMAC in and to the Receivables, the unpaid indebtedness
evidenced thereby and the collateral security therefor, free of any Lien;
(m) Lawful Assignment. No Receivable was originated in, or is subject
to the laws of, any jurisdiction the laws of which would make unlawful the
sale, transfer and assignment of such Receivable under this Agreement;
(n) All Filings Made. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give CARI a first priority
perfected ownership interest in the Receivables shall have been made;
(o) One Original. There is only one original executed copy of each
Receivable;
(p) No Documents or Instruments. No Receivable, or constituent part
thereof, constitutes a "negotiable instrument" or "negotiable document of
title" (as such terms are used in the UCC);
(q) Maturity of Receivables. Each Receivable has an original maturity
of not less than 6 months and not greater than 60 months;
(r) Lowest Annual Percentage Rate. The lowest Annual Percentage Rate
of any Receivable is 0.00%;
(s) Scheduled Payments; Delinquency. Each Receivable was originated on
or after September 1, 1998, has a first scheduled payment that is due on or
after November 1, 1998, has a final scheduled payment that is due no later
than December 20, 2002, and has neither a payment that is more than 29 days
overdue as of the Cutoff Date nor been charged-off by GMAC;
(t) Vehicles. Each Financed Vehicle, on the date the receivable was
created, was a new automobile or light truck;
(u) Origin. Each Receivable shall have been originated in the United
States; and
(v) No Amendment. No Receivable has been amended or otherwise modified such that
the total number of the Obligor's Scheduled Payments (in the case of a Scheduled
Interest Receivable) or the number of originally scheduled due dates (in the
case of a Simple Interest Receivable) is increased or such that the Amount
Financed is increased.
SECTION 4.02 Additional Representations and Warranties of GMAC. GMAC hereby
represents and warrants to CARI as of the date hereof, as of the closing
hereunder and as of the closing under the Further Transfer and Servicing
Agreements, both in its capacity as the seller of the Receivables hereunder and
in its capacity as Servicer, that:
11
<page>
(a) Organization and Good Standing. GMAC has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority to own its properties and to conduct its
business as such properties are presently owned and such business is presently
conducted;
(b) Due Qualification. GMAC is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or lease of property or
the conduct of its business (including the servicing of the Receivables)
requires or shall require such qualification;
(c) Power and Authority. GMAC has the power and authority to execute and
deliver this Agreement and to carry out its terms; GMAC has full power and
authority to sell and assign the property to be sold and assigned to CARI and to
service the Receivables as provided herein and in the Further Transfer and
Servicing Agreements, has duly authorized such sale and assignment to CARI by
all necessary corporate action; and the execution, delivery and performance of
this Agreement have been duly authorized by GMAC by all necessary corporate
action;
(d) Valid Sale; Binding Obligation. This Agreement, when duly executed and
delivered, shall constitute a valid sale, transfer and assignment of the
Receivables, enforceable against creditors of and purchasers from GMAC; and this
Agreement, when duly executed and delivered, shall constitute a legal, valid and
binding obligation of GMAC enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(e) No Violation. The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement shall not conflict
with, result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or by-laws of GMAC, or any indenture, agreement, mortgage, deed of
trust or other instrument to which GMAC is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed of trust
or other instrument, other than this Agreement or violate any law or, to the
best of GMAC's knowledge, any order, rule or regulation applicable to GMAC of
any court or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over GMAC or any of its
properties; and
(f) No Proceedings. To GMAC's knowledge, there are no proceedings or
investigations pending, or threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over GMAC or its properties (A) asserting the invalidity of this
Agreement, (B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, or (C) seeking any determination or ruling that
might materially and adversely affect the performance by GMAC of its obligations
under, or the validity or enforceability of, this Agreement.
12
SECTION 4.03 Representations and Warranties of CARI. CARI hereby represents
and warrants to GMAC as of the date hereof and as of the closing hereunder:
(a) Organization and Good Standing. CARI has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority to own its properties and to conduct its
business as such properties are presently owned and such business is presently
conducted, and had at all relevant times, and now has, power, authority and
legal right to acquire and own the Receivables;
(b) Due Qualification. CARI is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualification;
(c) Power and Authority. CARI has the power and authority to execute and
deliver this Agreement and to carry out its terms and the execution, delivery
and performance of this Agreement have been duly authorized by CARI by all
necessary corporate action;
(d) No Violation. The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement shall not conflict
with, result in any breach of any of the terms and provisions of or constitute
(with or without notice or lapse of time) a default under, the certificate of
incorporation or by-laws of CARI, or any indenture, agreement, mortgage, deed of
trust or other instrument to which CARI is a party or by which it is bound, or
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument,
other than any Further Transfer and Servicing Agreement or violate any law or,
to the best of CARI's knowledge, any order, rule or regulation applicable to
CARI of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over CARI or
any of its properties; and
(e) No Proceedings. To CARI's knowledge, there are no proceedings or
investigations pending, or threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over CARI or its properties (i) asserting the invalidity of this
Agreement, or (ii) seeking any determination or ruling that might materially and
adversely affect the performance by CARI of its obligations under, or the
validity or enforceability of, this Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01 Conflicts With Further Transfer and Servicing Agreements. To
the extent that any provision of Sections 5.02 through 5.04 of this Agreement
conflicts with any provision of the Further Transfer and Servicing Agreements,
the Further Transfer and Servicing Agreements shall govern.
SECTION 5.02 Protection of Title; Filings. GMAC shall authorize and
execute, as applicable, and file such financing statements and cause to be
authorized and executed, as applicable, and filed such continuation and other
13
<page>
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the interest of CARI under this
Agreement in the Receivables and the other Purchased Property and in the
proceeds thereof. GMAC shall deliver (or cause to be delivered) to CARI
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing GMAC hereby authorizes CARI
and its assigns to file all such financing statements and to file such financing
statements without its signature.
(b) Name Change. GMAC shall not change its state of organization or its
name, identity or corporate structure in any manner that would, could or might
make any financing statement or continuation statement filed by GMAC in
accordance with Section 5.02(a) seriously misleading within the meaning of the
UCC, unless it shall have given CARI at least 60 days prior written notice
thereof.
(c) Executive Office; Maintenance of Offices. GMAC shall give CARI at least
60 days prior written notice of any relocation of its principal executive office
if, as a result of such relocation, the applicable provisions of the UCC would
require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement. GMAC shall at all
times maintain each office from which it services Receivables and its principal
executive office within the United States of America.
(d) New Debtor. In the event that GMAC shall change the jurisdiction in
which it is incorporated or otherwise enter into any transaction which would
result in a "new debtor" (as defined in the UCC) succeeding to the obligations
of GMAC hereunder, GMAC shall comply fully with the obligations of Section
5.02(a).
SECTION 5.03 Other Liens or Interests. Except for the conveyances hereunder
and as contemplated by the Further Transfer and Servicing Agreements, GMAC shall
not sell, pledge, assign or transfer the Receivables to any other Person, or
grant, create, incur, assume or suffer to exist any Lien on any interest
therein, and GMAC shall defend the right, title and interest of CARI in, to and
under such Receivables against all claims of third parties claiming through or
under GMAC.
SECTION 5.04 Repurchase Events. By its execution of the Further Transfer
and Servicing Agreements to which it is a party, GMAC shall acknowledge the
assignment by CARI of such of its right, title and interest in, to and under
this Agreement to the Issuer as shall be provided in the Further Transfer and
Servicing Agreements. GMAC hereby covenants and agrees with CARI for the benefit
of CARI and the Interested Parties that in the event of a breach of any of
GMAC's representations and warranties contained in Section 4.01 hereof with
respect to any Receivable (a "Repurchase Event"), GMAC will repurchase such
Receivable from the Issuer (if the Issuer is then the Owner of such Receivable)
on the date and for the amount specified in the Further Transfer and Servicing
Agreements, without further notice from CARI hereunder. Upon the occurrence of a
Repurchase Event with respect to a Receivable for which CARI is the Owner, GMAC
agrees to repurchase such Receivable from CARI for an amount and upon the same
terms as GMAC would be obligated to repurchase such Receivable from the Issuer
if the Issuer was then the Owner thereof, and upon payment of such amount, GMAC
shall have such rights with respect to such Receivable as if GMAC had purchased
such Receivable from the Issuer as the Owner thereof. It is understood and
agreed that the obligation of GMAC to repurchase any Receivable as to which a
14
breach has occurred and is continuing shall, if such obligation is fulfilled,
constitute the sole remedy against GMAC for such breach available to CARI or any
Interested Party.
SECTION 5.05 Indemnification. GMAC shall indemnify CARI for any liability
as a result of the failure of a Receivable to be originated in compliance with
all requirements of law. This indemnity obligation shall be in addition to any
obligation that GMAC may otherwise have.
SECTION 5.06 Further Assignments. GMAC acknowledges that CARI may, pursuant
to the Further Transfer and Servicing Agreements, sell the Receivables to the
Issuer and assign its rights hereunder to the Issuer, subject to the terms and
conditions of the Further Transfer and Servicing Agreements, and that the Issuer
may in turn further pledge, assign or transfer its rights in the Receivables and
this Agreement. GMAC further acknowledges that CARI may assign its rights under
the Custodian Agreement to the Issuer.
SECTION 5.07 Pre-Closing Collections. Within two Business Days after the
closing hereunder, GMAC shall transfer to the account or accounts designated by
CARI (or by the Issuer under the Further Transfer and Servicing Agreements) all
collections on the Receivables held by GMAC at the time of such closing and
conveyed to CARI pursuant to Section 2.01(a); provided that so long as the
Monthly Remittance Conditions are satisfied, such collections need not be
transferred until the first Distribution Date.
ARTICLE VI
CONDITIONS
SECTION 6.01 Conditions to Obligation of CARI. The obligation of CARI to
purchase the Receivables hereunder is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and
warranties of GMAC hereunder shall be true and correct at the time of the
closing hereunder with the same effect as if then made, and GMAC shall have
performed all obligations to be performed by it hereunder on or prior to
the closing hereunder.
(b) No Repurchase Event. No Repurchase Event shall have occurred on or
prior to the closing hereunder.
(c) Computer Files Marked. GMAC shall, at its own expense, on or prior
to the closing hereunder, indicate in its computer files created in
connection with the Receivables that the Receivables have been sold to CARI
pursuant to this Agreement and deliver to CARI the Schedule of Receivables
certified by an officer of GMAC to be true, correct and complete.
(d) Documents to be Delivered By GMAC at the Closing.
(i) The Assignment. At the Closing, GMAC shall execute and
deliver an assignment in the form attached hereto as Exhibit A.
(ii) Evidence of UCC Filing. On or prior to the closing
hereunder, GMAC shall record and file, at its own expense, a UCC-1
15
financing statement in each jurisdiction in which required by
applicable law, authorized by and naming GMAC as seller or debtor,
naming CARI as purchaser or secured party, naming the Receivables and
the other Purchased Property as collateral, meeting the requirements
of the laws of each such jurisdiction and in such manner as is
necessary to perfect the sale, transfer, assignment and conveyance of
such Receivables to CARI. GMAC shall deliver a file-stamped copy, or
other evidence satisfactory to CARI of such filing, to CARI on or
prior to the closing hereunder.
(iii) Other Documents. At the closing hereunder, GMAC shall
provide such other documents as CARI may reasonably request.
(e) Other Transactions. The transactions contemplated by the Further
Transfer and Servicing Agreements shall be consummated to the extent that
such transactions are intended to be substantially contemporaneous with the
transactions hereunder.
SECTION 6.02 Conditions To Obligation of GMAC. The obligation of GMAC to
sell the Receivables to CARI hereunder is subject to the satisfaction of the
following conditions:
(a) Representations and Warranties True. The representations and
warranties of CARI hereunder shall be true and correct at the time of the
closing hereunder with the same effect as if then made, and CARI shall have
performed all obligations to be performed by it hereunder on or prior to
the closing hereunder.
(b) Receivables Purchase Price. At the closing hereunder, CARI shall
pay to GMAC the Receivables Purchase Price as provided in Section 2.02.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 Amendment. This Agreement may be amended from time to time
(subject to any expressly applicable amendment provision of the Further Transfer
and Servicing Agreements) by a written amendment duly executed and delivered by
GMAC and CARI.
SECTION 7.02 Survival. The representations and warranties of GMAC set forth
in Articles IV and V of this Agreement and of Servicer set forth in Section 3.07
of this Agreement shall remain in full force and effect and shall survive the
closing under Section 2.03 hereof and the closing under the Further Transfer and
Servicing Agreements.
SECTION 7.03 Notices. All demands, notices and communications upon or to
GMAC or CARI under this Agreement shall be delivered as specified in Part III of
Appendix A to this Agreement.
16
SECTION 7.04 GOVERNING LAW. THIS AGREEMENT AND THE ASSIGNMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OR OF ANY OTHER
JURISDICTION, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 7.05 Waivers. No failure or delay on the part of CARI in exercising
any power, right or remedy under this Agreement or the Assignment shall operate
as a waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
SECTION 7.06 Costs and Expenses. GMAC agrees to pay all reasonable
out-of-pocket costs and expenses of CARI, including fees and expenses of
counsel, in connection with the perfection as against third parties of CARI's
right, title and interest in, to and under the Receivables and the enforcement
of any obligation of GMAC hereunder.
SECTION 7.07 Confidential Information. CARI agrees that it shall neither
use nor disclose to any person the names and addresses of the Obligors, except
in connection with the enforcement of CARI's rights hereunder, under the
Receivables, under the Further Transfer and Servicing Agreements or as required
by law.
SECTION 7.08 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 7.09 Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 7.10 No Petition Covenant. Notwithstanding any prior termination of
this Agreement, GMAC shall not, prior to the date which is one year and one day
after the final distribution with respect to the Notes and the Certificates to
the Note Distribution Account or the Certificate Distribution Account, as
applicable, acquiesce, petition or otherwise invoke or cause CARI to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against CARI under any federal or state bankruptcy, insolvency
or similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of CARI or any substantial
part of its property, or ordering the winding up or liquidation of the affairs
of CARI.
SECTION 7.11 Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of GMAC and CARI and, to the extent
expressly provided herein, the Interested Parties, and nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in, under, or in respect of
this Agreement or any covenants, conditions or provisions contained herein.
* * * * *
17
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: KAREN A. SABATOWSKI
__________________________________
Name: Karen A. Sabatowski
Title: Director - Securitization and Cash
Management
CAPITAL AUTO RECEIVABLES, INC.
By: R. L. STRAUB
_________________________________
Name: R. L. Straub
Title: Manager - Securitization
18
EXHIBIT A
ASSIGNMENT PURSUANT TO POOLING AND SERVICING AGREEMENT
For value received, in accordance with the Pooling and Servicing Agreement,
dated as of January 24, 2002 (the "Pooling and Servicing Agreement"), between
General Motors Acceptance Corporation, a Delaware corporation ("GMAC"), and
Capital Auto Receivables, Inc., a Delaware corporation ("CARI"), GMAC does
hereby sell, assign, transfer and otherwise convey unto CARI, without recourse,
(i) all right, title and interest of GMAC in, to and under the Receivables
listed on the Schedule of Receivables and (a) in the case of Scheduled Interest
Receivables, all monies due thereunder on and after the Cutoff Date and (b) in
the case of Simple Interest Receivables, all monies received thereon on and
after the Cutoff Date, in each case exclusive of any amounts allocable to the
premium for physical damage insurance force-placed by GMAC covering any related
Financed Vehicle; (ii) the interest of GMAC in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Receivables and, to the
extent permitted by law, any accessions thereto; (iii) except for those
Receivables originated in Wisconsin, the interest of GMAC in any proceeds from
claims on any physical damage, credit life, credit disability or other insurance
policies covering Financed Vehicles or Obligors; (iv) the interest of GMAC in
any proceeds from recourse against Dealers on Receivables; and (v) the interest
of GMAC in any proceeds of the property described in clauses (i) and (ii) above.
It is the intention of GMAC and CARI that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables from
GMAC to CARI and the beneficial interest in and title to the Receivables shall
not be part of GMAC's estate in the event of the filing of a bankruptcy petition
by or against GMAC under any bankruptcy law.
The foregoing sale does not constitute and is not intended to result in any
assumption by CARI of any obligation of the undersigned to the Obligors,
Dealers, insurers or any other Person in connection with the Receivables, the
Dealer Agreements, any insurance policies or any agreement or instrument
relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Pooling and Servicing Agreement and is to be governed by the Pooling and
Servicing Agreement.
Capitalized terms used herein and not otherwise defined herein shall have
the meaning assigned to them in the Pooling and Servicing Agreement.
* * * * *
A-1
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of January 24, 2002.
GENERAL MOTORS ACCEPTANCE CORPORATION
By: KAREN A. SABATOWSKI
________________________________________
Karen A. Sabatowski
Title: Director - Securitization and Cash
Management
A-2
APPENDIX A
Part I
For ease of reference, capitalized terms defined herein have been
consolidated with and are contained in Appendix A to the Trust Sale and
Servicing Agreement of even date herewith among GMAC, CARI and Capital Auto
Receivables Asset Trust 2002-1, as amended and supplemented from time to time.
Part II
For ease of reference, the rules of construction have been consolidated
with and are contained in Part II of Appendix A to the Trust Sale and Servicing
Agreement of even date herewith among GMAC, CARI and Capital Auto Receivables
Asset Trust 2002-1, as amended and supplemented from time to time.
Part III
For ease of reference, the notice addresses and procedures have been
consolidated with and are contained in Appendix B to the Trust Sale and
Servicing Agreement of even date herewith among GMAC, CARI and Capital Auto
Receivables Asset Trust 2002-1, as amended and supplemented from time to time.
A-3
APPENDIX B
Additional Representations and Warranties
1. While it is the intention of GMAC and CARI that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Purchased
Property from GMAC to CARI, this Agreement, the Trust Sale and Servicing
Agreement and the Indenture create a valid and continuing security interest
(as defined in the applicable UCC) in the Purchased Property in favor of
CARI, which security interest is prior to all other Liens, and is
enforceable as such as against creditors of and purchasers from GMAC, CARI
and the Issuer, respectively.
2. All steps necessary to perfect GMAC's security interest against each
Obligor in the property securing the Purchased Property have been taken.
3. Prior to the sale of the Purchased Property to CARI under this Agreement,
the Receivables constitute "tangible chattel paper" within the meaning of
the applicable UCC.
4. GMAC owns and has good and marketable title to the Purchased Property free
and clear of any Lien, claim or encumbrance of any Person.
5. GMAC has caused or will have caused, within ten days, the filing of all
appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the
security interest in the Purchased Property granted to CARI hereunder, the
Issuer under the Trust Sale and Servicing Agreement and the Indenture
Trustee under the Indenture.
6. Other than the security interest granted to CARI pursuant to the Basic
Documents, the Issuer under the Trust Sale and Servicing Agreement and the
Indenture Trustee under the Indenture none of GMAC, CARI or the Issuer has
pledged, assigned, sold, granted a security interest in, or otherwise
conveyed any of the Purchased Property. None of GMAC, CARI or the Issuer
has authorized the filing of, or is aware of, any financing statements
against GMAC, CARI or the Issuer that include a description of collateral
covering the Purchased Property other than the financing statements
relating to the security interests granted to CARI , the Issuer and the
Indenture Trustee under the Basic Documents or any financing statement that
has been terminated. None of GMAC, CARI or the Issuer is aware of any
judgment or tax lien filings against GMAC, CARI or the Issuer.
7. GMAC, as Servicer, has in its possession all original copies of the
Receivables Files and other documents that constitute or evidence the
Receivables and the Purchased Property. The Receivables Files and other
documents that constitute or evidence the Purchase Property do not have any
marks or notations indicating that they have been pledged, assigned or
otherwise conveyed to any Person other than CARI.
B-1